Case: Olivia Y. v. Barbour

On March 30, 2004, children in the custody of the Mississippi Department of Human Service's Division of Family and Children's Services, on behalf of abused and neglected children in the State of Mississippi, filed this lawsuit in the U.S. District Court for the Southern District of Mississippi. The plaintiffs sued the Department of Human Services (DHS) and the Division of Family and Children's Services (DFCS) under 42 U.S.C. § 1983. Represented by private and public counsel, the plaintiffs asked for declaratory and injunctive relief.

The complaint alleged that the defendants harmed and put at risk members of the plaintiff class in numerous ways: failing to investigate or confirm credible reports of abuse and neglect; failing to provide services to children found to be abused or neglected; failing to respond to requests for applications by people interested in becoming foster and adoptive parents, resulting in a shortage of foster parents; placing children in unsafe or unsuitable care and failing to monitor in-custody children to ascertain that they are safe; over-institutionalizing foster children by placing children of all ages in institutional or group settings regardless of their needs; failing to provide foster children with necessary medical, dental, and mental health services; and failing to file petitions to free children for adoption by terminating parental rights in accordance with federal statutory timeframes. The complaint also alleged that the state was repeatedly denied federal funds because of deficient case record documentation and the placement of children in unlicensed homes and facilities, and that the defendants failed to follow through the reform plan they initiated in the late 1990s to address the state's systemic child welfare failures. All this, the plaintiffs said, was due to understaffing, mismanagement, and the failure to implement necessary reforms, which resulted in violations of Substantive Due Process, Procedural Due Process, Equal Protection, state law, and the federal Adoption Assistance and Child Welfare Act.

The plaintiffs sought a declaration that the defendants' violation of class members' rights was unlawful; a permanent injunction forbidding the defendants to subject members of the plaintiff class to practices that violated their rights, including remedial provisions to ensure that a detailed curative plan was developed, implemented, and monitored; and an award of reasonable attorneys' fees and costs.

On March 30, 2004, plaintiffs sought class action certification for two plaintiff subclasses: (1) all children who are or will be in the custody of DFCS ("In-Custody Class"); and (2) all of those children who are not in DFCS custody, but have been or are at risk of being abused and neglected and about whom the defendants have received a report of abuse or neglect ("Protective Services Class"). The defendants then moved to dismiss on June 1, 2014 and filed a motion to stay consideration of the motion for class certification pending a ruling on the motion to dismiss.

On November 18, 2004, the Court (Judge Tom S. Lee) dismissed all claims sought to be asserted by and on behalf of the "Protective Services Class" and also dismissed the claims of the "In-Custody Class" for violation of their alleged procedural due process rights and for violation of the Adoption Assistance and Child Welfare Act. Hence, there only remained claims of the putative "In-Custody Class" for violation of their substantive due process rights. 351 F. Supp. 543.

On March 11, 2005, the Court (Judge Lee) granted class certification for the "In-Custody Class" only, reasoning that even though each plaintiff and proposed class member may not have suffered the same type or degree of harm, because it appeared that defendants' alleged acts and omissions posed a significant risk of similar harm to all (or at least the requisite "significant number" of) children in DHS custody, the requirements of commonality and typicality were satisfied. Judge Lee also held that plaintiffs' allegations related to defendants' actions and inaction with respect to the class as a whole and the relief plaintiffs sought would be relief with respect to the class as a whole.

Discovery and litigation continued while the parties entered settlement discussions. These talks were successful and, on April 3, 2007, the parties filed a joint motion for preliminary approval of a stipulated settlement agreement. The court granted this motion the same day.

The settlement stated that the parties agreed to move directly to the remedial phase of the litigation, and that the parties would attempt to agree on a remedial plan developed by the defendants and the Council on Accreditation (COA). The plan would state specific actions and timelines for the defendants to achieve accreditation and conform the state standards with federal standards regarding foster care and would also cover the services and plans for the named plaintiffs. It would be court enforceable and provide for an outside monitor. The parties agreed to mediation to try to facilitate settlement and that they would proceed to a trial as to the scope of the necessary remedy, if such mediation failed.

On November 8, 2007, the parties agreed upon the Mississippi Settlement Agreement and Reform Plan and filed a joint motion for its approval. On January 4, 2008, the court approved the plan. The Plan stated that:

• the named plaintiffs who remained in state custody as of the Stipulated Settlement Agreement all will have an individual plan that provides for permanency and independent living services monitored by the plaintiffs' counsel;

• the defendants will meet the standards and outcome measures of this Plan within five years of the court's approval or within any earlier interim timelines specified;

• the DFCS's foster care services will be accredited by COA;

• the director of DFCS will have an advanced degree relevant to the agency's mission and services and at least five years of related experience;

• no DFCS caseworker will carry an excessive caseload and individual caseloads shall be measured monthly;

• all newly hired DFCS foster care workers will have an advanced degree in social work or a comparable human services field, or a B.A. in social work or a comparable human service field with two years of related experience;

• the DFCS will maintain a training unit to provide comprehensive child welfare training to all employees;

• the DFCS will begin implementing a separate continuous quality improvement (CQI) system and will improve recordkeeping and information retention in a variety of specified ways;

• the DFCS will engage in a thorough screening of the child and conduct an individualized assessment of the family upon taking the child in custody for foster care services;

• shortly after a child's entrance into foster care, a team meeting will be convened to develop a service plan for the child and to document a permanency plan in the child's case record;

• the DFCS will maintain a well-publicized statewide child abuse hotline for the reporting of abuse and/or neglect;

• each child will receive a comprehensive health assessment, periodic medical examinations, and all medically necessary follow-up services and treatment throughout their stay in state custody;

• the DFCS caseworkers will screen each child for general and special educational needs and take reasonable steps to ensure that school-age foster children are registered for and attending accredited schools;

• regardless of whether a child's foster care placement is being supervised by DFCS or by a contract agency, the assigned DFCS caseworker will meet with the child and visit at least once a month during the child's placement;

• the DFCS will make available a sufficient number of appropriate placements for all children in its custody; and

• defendants' compliance will be monitored by independent monitoring.

On June 5, 2009, the monitor's report noted that, despite the defendants' significant accomplishments, including initiatives that had been introduced and were being managed by a newly hired and experienced team of child welfare professionals, the pace of progress during Period 1 did not meet the Agreement's requirements. To meet the required reforms within the five-year timetable, the monitor stated that the defendants would need to accelerate and intensify their efforts.

The next year, the monitor's report noted that, although DFCS has been reorganized under a new management team and had received more funding, both the pace and breadth of defendants' progress during Period 2 was, again, inadequate. Specifically, efforts to satisfy the Agreement requirements continued to be belated and were often insufficient.

On July 6, 2012, the parties agreed to and the court approved the Modified Mississippi Settlement Agreement and Reform Plan, the filing of which constituted the commencement of Implementation Period 3. This third implementation plan and each subsequent annual implementation plan were incorporated in the Agreement and would be developed jointly with the parties 90 calendar days prior to the end of the previous 12-month period. The Modified Mississippi Settlement Agreement and Reform Plan provided a more specific statewide and region-by-region approach to reform.

On March 9, 2015, plaintiffs filed a motion for contempt, requesting that the Court find that defendants in noncompliance with the Period 3 Implementation Plan and the July 9 Order. They requested that the Court appoint experts with expertise in implementing child welfare system reform to conduct an organizational analysis.

On July 23, 2015, Judge Lee ordered that the defendants retain Public Catalyst to conduct an organizational analysis of DFCS to assess the state of the system and hire an Executive Director of DFCS. Judge Lee also ordered that the parties negotiate a Court-enforceable Remedial Order based on the recommendations within three weeks of the date of the Final Organizational Analysis Report. Judge Lee ordered that the DFCS Executive Director consult with an Advisory Group of three experts for not less than three years following the filing date of the Remedial Order and stated that if the defendants did not comply with the terms of the order, then the plaintiffs could immediately seek a hearing on the remedial portion of their motion.

On December 22, 2015, Judge Lee granted the parties' Joint Motion for Entry of Interim Remedial Order ordering that the defendants house DFCS within the Mississippi Department of Human Services (MDHS), that DFCS begin oversight of its own budget, personnel, and management information system functions, that DFCS implement caseload standards as set forth in the Modified Settlement Agreement (MSA), and that DFCS build a better-resourced DFCS Field Operations team and better allocate its resources. Finally, Judge Lee ordered that the remedy phase of the motion for contempt shall be continued until May 15, 2016 at which time the parties shall submit a Final Remedial Order to the Court or, in the absence of an agreement on a Final Remedial Order, the plaintiffs shall proceed with the remedy phase of the contempt motion.

Defendants failed to meet the standards set forth in the MSA. On January 6, 2016, the Monitor submitted a report concluding that "defendants' performance declined" on both statewide and regional levels. No region met "even half" of its requirements. The Monitor identified a number of systemic issues, including excessive caseloads, inadequate supervision, and poor services exacerbated by a 26% increase in the number of children in need of defendants' care from 2013 to 2015.

Little progress was made during 2016. Judge Lee did grant a motion for plaintiffs' attorneys' fees made under 42 U.S.C. § 1988 after reducing some hourly rates to reflect Mississippi norms on May 6. And on May 19, the parties agreed to a second stipulated remedial order in which the defendants admitted to being out of compliance with the MSA. In addition, they agreed that Public Catalyst would certify whether defendants were in compliance with the specified sections of the Interim Remedial Order.

On December 6, 2016, the Monitor released additional findings on defendants' compliance with the MSA. The Monitor identified high-quality work as "more the exception than the rule," and concluded it was "imperative that defendants work to enhance quality and consistency on all steps of the . . . process." The defendants asserted that they were addressing the problem areas.

Shortly thereafter, the parties revamped their settlement agreement and enforcement protocols. The December 19, 2016 Second Modified Mississippi Settlement Agreement and Reform Plan laid out comprehensive new standards in (1) leadership; (2) child safety; (3) family-based placement; (4) placement standards; (5) visitation; (6) permanency; (7) transitions to adulthood; (8) child well-being; and administrative details of the settlement. It took effect on January 1, 2017. At the same time, the parties adopted a Stipulated Third Remedial Order (STRO). The STRO specified specific steps that the defendants were to take to meet their obligations. It also reiterated that defendants were not in compliance with the MSA but acknowledged that they lacked "the capacity to comply."

Judge Lee granted another motion for plaintiffs' attorneys' fees on July 21, 2017, largely rejecting defendants' objections that plaintiffs' fee requests were overly vague; another fee award was granted on April 9, 2018.

On May 31, 2018, plaintiffs moved for an order declaring defendants in contempt for noncompliance with the STRO. In particular, they alleged that only 61% of defendant's employees met performance targets; the STRO required 90%. Over the next months, the parties engaged in discovery. On January 17, 2019 the court deferred ruling on compliance until after the monitor's June report was filed. After the report was filed on June 11, 2019, the plaintiffs renewed their motion. Discovery continued, as did the biannual reports from the monitor.

As of May 20, 2020 discovery is ongoing with oral argument set for August 4, 2020.